Senate Bill 2820: The Reform, Shift + Build Act Final Bill Fact Sheet July 2020 Overview • What Does the Reform, Shift + Build Act do? o This comprehensive bill is designed to increase police accountability, shift the role of law enforcement away from surveillance and punishment towards de-escalation and assistance, and begin to dismantle systemic racism o The Reform, Shift + Build Act is the Senate’s initial step towards addressing issues of racial justice and equity in the Commonwealth • Where did the bill come from? o In early June 2020, Senate President Karen Spilka formed the bipartisan Senate Working Group on Racial Justice in response to protests in the wake of the killings of George Floyd, Breonna Taylor, Ahmaud Arbery and others o The bipartisan Working Group—which was co-chaired by Sens. Sonia Chang-Díaz (D-Boston) and William Brownsberger (D-Belmont)—included Sens. Bruce Tarr (R-Gloucester), Michael Moore (D-Millbury), Nick Collins (D-Boston), and Jo Comerford (D-Northampton); one of the Democrats is a former police officer and one of the co-chairs is a member of the Black & Latino Legislative Caucus o The Working Group largely evaluated existing bills, which had been vetted through the traditional legislative process, including the joint committee process and public hearings; Senators suggested existing bills to the Working Group for their consideration for inclusion in an omnibus bill focused on police accountability and racial justice o The policies included were modeled after recommendations from community advocates and elected officials of color from around the state o The resulting bill, the Reform, Shift + Build Act, was released by the Senate Ways and Means Committee on July 6, 2020 and was endorsed by the NAACP New England Area Conference (NEAC) and the ACLU of Massachusetts; many of the reforms were also welcomed by law enforcement groups o Once the bill was released, discussions continued with Senators, police groups, the NAACP- NEAC and the ACLU of Massachusetts to reach consensus on bill language; groups were invited to submit clarifying language Senate Bill 2820: The Reform, Shift + Build Act Final Bill Fact Sheet July 2020 Page 1 of 9 • How do the reforms in the Reform, Shift + Build Act keep communities of color safe? o The reforms included in the bill will decrease the footprint of policing overall as well as the likelihood of misconduct by setting clear standards, requiring de-escalation and strengthening accountability o By banning racial profiling and collecting comprehensive demographic data on police stops, communities of color will be made safer from the consequences of implicit bias, and bad actors can be identified earlier on by police departments and communities o The bill increases community safety by redirecting resources to strategies that build neighborhood stability and strength: job creation and economic development, education, and mental and behavioral health services o The bill reallocates money from the corrections system and police overtime fraud to economic empowerment initiatives in communities impacted by over-policing and mass incarceration; grants will be controlled by a board of community members, local leaders and residents Bill Components: Reform • Accountability, Oversight + Training o The bill creates a Police Officer Standards and Accreditation Committee (POSAC)—an independent state entity composed of law enforcement professionals, community members, and racial justice advocates—to standardize the certification, training, and decertification of police officers. The POSAC includes six law enforcement members, both management and rank-and-file officers, eight non-law enforcement members and one retired judge All non-law enforcement members will have experience with or expertise in law enforcement practice and training, criminal law, civil rights law, the criminal justice system or social science fields related to race or bias The POSAC will have independent power to investigate misconduct, including subpoena power Certain offenses, such as excessive use of force or failing to intervene, will result in mandatory and permanent decertification of an officer Any POSAC investigation does not preclude an investigation by the officer’s appointing authority The POSAC process grants an officer the right to request a hearing, a right to be present at the hearing, a right to submit testimony at the hearing and a right to counsel at the hearing; the POSAC process also allows for a thorough appeals process, including in court Senate Bill 2820: The Reform, Shift + Build Act Final Bill Fact Sheet July 2020 Page 2 of 9 The POSAC has the ability to revoke the certification of an officer found in violation of the use of force laws established in the bill, and other actions such as involvement in hate crimes, false arrests and witness intimidation Decertification is for life; a decertified officer cannot work as a police officer or corrections officer anywhere in Massachusetts The results of substantiated complaints will be available in a publicly searchable database The bill establishes a commission to recommend a correctional officer certification, training, and decertification framework similar to the POSAC; recommendations are due by July 31, 2021 o What exactly is the POSAC process for decertification? The POSAC can receive a complaint from any person If the complaint is of a charge that would result in automatic decertification, the POSAC must investigate it If it is of a lesser charge, the POSAC may investigate or they may request that the officer’s employing agency investigate it—or both investigations may proceed concurrently if both authorities choose to investigate The POSAC has the ability to subpoena police records and other documentation necessary for the investigation When the investigation is complete, the POSAC hearing panel votes The simple majority decision prevails, as is the case with other licensed professions; the standard will be the high bar of clear and convincing evidence If revocation of certification takes place, an officer’s decertification is maintained within state and national data systems Adverse actions taken by the POSAC against an officer’s certification may not be appealed to the civil service commission o The bill includes reforms to the State Police, including: Permitting the appointment of a colonel from outside the State Police Giving the colonel greater ability to apply discipline Creating a state police cadent program, tto increase diversity in the workforce Senate Bill 2820: The Reform, Shift + Build Act Final Bill Fact Sheet July 2020 Page 3 of 9 o The bill imposes a moratorium on the use facial surveillance technology by government entities until December 31, 2021 while a commission studies its use o The bill creates a task force to study the use of body and dashboard cameras by law enforcement agencies o The bill prohibits non-disclosure agreements in settlements over police misconduct o The bill mandates increased training on the history of systemic racism, responding to mental health emergencies, de-escalation techniques and use of force rules • Use of Force o The Reform, Shift + Build Act strengthens use of force standards for all law enforcement agents by: Banning chokeholds where the intent or result is to cause unconsciousness Limiting no-knock warrants to cases where not knocking would endanger lives, and increases the level of oversight needed to get a no-knock warrant to require sign-off by a judge Restricting the use of deadly force only to situations where it is necessary to prevent imminent death or serious physical injury to the officer or another person; preventing escape is no longer an acceptable reason for deadly force Requiring the use of de-escalation tactics when feasible before the use of any physical or deadly force Creating a duty to intervene for officers who witness abuse of force and requiring the witnessing officer to report such abuse to supervisors by the end of their shifts Significantly increasing limits on police use of elevated crowd control tactics such as tear gas, rubber bullets and dogs Police may not use elevated crowd control tactics unless all of the following conditions apply: • De-escalation tactics have been tried and have failed, or were not feasible • There is a threat of imminent harm to people, not just property • The harm likely to be inflicted by the crowd control tactic is proportionate to the imminent harm that will occur if nothing is done. o All use of force standards in the bill provide an exception if there is imminent harm to the officer or another person Senate Bill 2820: The Reform, Shift + Build Act Final Bill Fact Sheet July 2020 Page 4 of 9 • Qualified Immunity + Indemnification o The following is background on qualified immunity: Qualified immunity is an affirmative defense created by the Supreme Court and since expanded The text from the decision of the Supreme Court case that established the modern concept of qualified immunity is as follows: [G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known In defining this standard, the court sought to balance considerations of justice for plaintiffs with the social costs of excessive lawsuits In practice, qualified immunity has unfortunately served to shield police officers from accountability even in some of the worst cases of excessive